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ANALYSIS OF APRIL 18, 2008 SUPREME COURT OPINIONS

[Posted April 18, 2008] Today turns out to be a lighter than expected opinion day at the Supreme Court of Virginia. The court hands down eleven published opinions and two published orders; there will probably be a couple of unpublished orders as well. Several cases will be held over to the June session.

A solid plurality of today’s decisions comes from the field of criminal law; five of the opinions and one order get decided in that fashion. This continues the noticeable trend by which the Supreme Court has taken far more criminal appeals from the Court of Appeals than it did in recent years. One intriguing criminal law question that doesn’t get decided today is whether trial courts have the right to defer findings in criminal cases; that one will have to wait until at least the June session.

Land use
Most trial lawyers don’t even bother to feign interest in land use law, considering it arcane or highly dependent on technical jargon in land use ordinances. But Logan v. Roanoke City Council contains a time bomb that could have caused a great deal of litigation if it had come out the other way. Fortunately (at least from my point of view), the court defuses the bomb.

A developer in Roanoke wanted to develop a subdivision on a mountainside, and needed to avoid several ordinance provisions in order to make the project work. For example, one street needed to be approved at a 16 degree grade (that’s pretty steep) instead of the maximum 10 degree grade permitted; there were also a couple of areas in which the required 30’ street width couldn’t be accommodated.

The developer went to the city’s Planning Director and asked for conditional approval of the project, containing exceptions as requested to make the plan work. The Director approved the plan, but several nearby neighbors filed a declaratory judgment action against the City Council, the Director, and the developer to challenge the Director’s action. They argued among other things that the City had no authority to delegate to the Director the power to grant exceptions (invoking the venerable Dillon Rule), and that the delegation was otherwise improper because it vested too much discretion to the Director without giving him meaningful guidelines on how that discretion would be exercised.

The defendants answered in part that the neighbors had no standing to bring the action. The trial court went ahead and considered the dispute anyway, and eventually ruled in favor of the defendants. Today, the Supreme Court hands down a highly fractured ruling (“Affirmed in part, reversed in part, vacated in part, dismissed in part, and final judgment” – I’ve never seen so many different taglines in a single case before), but the end result is a complete victory for the defendants.

Most of today’s opinion is spent harmonizing several statutes dealing with subdivision ordinances. And in truth, that’s probably the unsexiest thing about the decision; the court finds that the ordinances comply with the statutes that require the adoption of subdivision ordinances. The court also rules that the Director had appropriate guidelines on how to exercise his discretion. In my opinion, this part of today’s ruling is a significant victory for local governments, since the ordinance really doesn’t say very much about how the Director should analyze such requests. The result of today’s opinion is that localities don’t have to be overly specific when delegating authority to officials in matters such as this.

The big issue in the case, in my view, is the defendants’ assignment of cross-error, in which they challenged the trial court’s ruling on standing. This is the part of the case that results in a reversal; the Supreme Court finds that one has no private right to invoke a subdivision ordinance in a DJ action. That goes for other land use laws, too; the court has so held twice in the recent past, most recently last year in the case involving windmill farms in Virginia’s Switzerland, HighlandCounty. It was important to reaffirm this consistent holding, that only the government has a right to sue to enforce local land use laws. One can only imagine an already nasty neighbor dispute getting far nastier if one neighbor could sue the other, claiming that his house was too close to the street, or that his detached garage wasn’t up to code. For now (and for the foreseeable future), only governments have the right to tackle that kind of lawsuit.

Torts
The court today rejects one tactic used by lawyers to sneak hearsay expert opinions into evidence. The case is Bostic v. About Women OB/GYN, a nursing malpractice suit brought against a midwife. The mother gave birth to a child afflicted with Erb’s palsy (which results when the child’s shoulder gets stuck on the mother’s pubic bone during delivery), and asserted in the suit that the midwife had subjected the baby’s head to excessive traction. The nurse answered that she had done nothing wrong, and that the excessive force was due to normal pushing in the process of delivery.

At trial, the nurse herself and her expert witness were both examined by defense counsel in roughly the following fashion:

Q: I’m going to read the following from Treatise X, and I want you to tell me whether you agree with it . . .

The problem is that no one had established the reliability or authoritativeness of the treatise at any point in the trial. Nevertheless, the trial court permitted the examination. At one particularly telling point, the nurse’s expert was asked if he agreed with the assertion in the literature that normal propulsive forces, instead of the person assisting in the delivery, were responsible for Erb’s palsy. He replied, “I would use the word, ‘could be responsible.’ “

The Supreme Court rules that this kind of examination is impermissible, since the statutory exception to the hearsay rule for learned treatises (Code § 8.01-401.1) requires that an expert have relied upon the treatise in forming his opinions. This expert never established such reliance, and so it amounted to the injection into evidence of a statement by an absent expert who could not be cross-examined. The court therefore reverses the defense verdict, and remands for a new trial.

The other tort case decided today is Wright v. Minnicks, in which there were two trials on the merits. It’s a wrongful death case arising out of a motorcycle accident. The widow sought the usual panoply of damages, including funeral expenses, lost income, and solace. But at the first trial, the jury gave her zero for solace, even though it award her all of the expenses and nearly a million dollars in lost income. The defendant noted this anomaly and compared it with a 1991 opinion in which the Supreme Court had rejected a verdict that included lots of money for other things and nothing for solace. It accordingly moved for a new trial.

Faced with a cite like that 1991 case (in which the court had found a verdict without a solace element to be “incomprehensible”), the trial court felt it had to award a new trial, despite the plaintiff’s desire to accept the verdict. On retrial, things went even worse for the widow; she again got all of the funeral and medical expenses, but one dollar for solace and nothing at all for lost income.

The trial court entered judgment on the second verdict, and the widow got a writ to review the case. Today, the Supreme Court reverses and reinstates the first verdict, finding that it was supported by credible evidence. How does that square with the 1991 case? Oddly enough, it’s because of evidence the defendant had introduced in order to minimize the solace recovery. It sought to prove in the first trial that the decedent’s marriage was on the rocks just before the accident, so the widow would have been a divorcee if her husband hadn’t been killed. The court finds that, while the widow denied that (she contended that the marriage was on solid footing), the jury could have believed the defendant’s evidence on that point. In that event, an award that includes a loss of financial support but excludes solace is perfectly “comprehensible,” so the first verdict should have been upheld.

This is merely the latest in a string of cases that demonstrate the firm commitment that this version of the Supreme Court has to the right to trial by jury. If an appellant comes into court with a case in which a trial court has taken away a jury verdict, you can bet your last two bucks that the court will take a microscope to the record to find any basis upon which the verdict can be upheld.

Sanctions
No doubt about it; sanctions was Topic A in Supreme Court jurisprudence in the 2006-07 term of the court. After a long period of little or no caselaw, we got an explosion of opinions on the sensitive topic, highlighted by Taboada v. Daly Seven and Ford MotorCompany v. Benitez. But over the last year, this battlefield has been quiet until today’s ruling in McNally v. Rey. Here’s what happened.

McNally is an attorney who represented a home improvement company in a suit brought by the Reys, who claimed that the company had botched some work on their home. Several months before the suit would be tried, the attorney advised the principal of the company about his options, including bankruptcy. The principal took that into consideration, but didn’t file at that time. Five days before trial, on a Friday afternoon, he came into his attorney’s office and said he had decided to go the bankruptcy route. The attorney printed off the forms, and told the principal to fill them out and bring them back.

The client did so, but not before late Tuesday afternoon; the case was set for a jury trial on Wednesday morning. The attorney quickly edited the forms and filed the petition electronically (as is required in USBC in the Eastern District) that evening. He then faxed a confirmation to the homeowners’ lawyer.

The next morning, the lawyers appeared in the courtroom, and McNally told the judge that the trial would come off; he handed up the confirmation sheet from the bankruptcy court. The homeowners’ lawyer asked the court to assess certain costs and attorney’s fees against the debtor’s lawyer. The trial court proceeded to consider that request then and there, asking McNally questions about when, exactly, the debtor had decided to file in bankruptcy court. Eventually, the court granted the motion and sanctioned McNally some $14,000, representing the costs and fees incurred by the homeowners in the ten days or so before the trial. The basis of the sanction, the Supreme Court notes in today’s opinion, was McNally’s filing of the witness and exhibit list required in the uniform pretrial order, “indicating an intent to try the case while in fact knowing that bankruptcy was to be filed.”

The Supreme Court reverses this sanction in short order, concluding that there was no basis in the record to support the finding that McNally did not intend to try the case when he filed the list. But today’s opinion doesn’t stop there; the court goes on to rule that an attorney representing a potential debtor has no obligation to notify opposing counsel or the court of the client’s consideration of bankruptcy. This last statement is vitally important for attorneys advising clients and filing bankruptcy petitions; as the Supreme Court notes today, the trial court’s approach “would have a chilling effect upon the rights of litigants and their attorneys . . . to avail themselves of their statutory rights set forth in the federal Bankruptcy Code.” It would indeed be an unfortunate situation if a court could strike indirectly at a debtor by striking directly at his lawyer, a situation reminiscent of the climax of John Grisham’s novel, The Firm.

Criminal law
If you drive by your local prosecutor’s office this weekend and see the flag at half-staff, it’s because the inhabitants have read today’s six criminal decisions. In virtually all respects, the Supreme Court rules in favor of suspects challenging their convictions. For the prosecution, today is a lost day, though not without a few firm dissenting opinions. Let’s start with Buhrman v. Commonwealth.

Back in the late 60’s, when I was a kid, 7-Eleven was open from 7 am until 11 pm (hence the name). The store introduced the Slurpee, a new idea for a frozen drink that my kid sister and I loved. Back then, a small one (which is all our father would pay for) was ten cents, and the attendant even poured it for you.

But times change. The price of even the smallest Slurpee has skyrocketed to, I think, something close to a dollar, and consistent with this age of self-service-everything, you have to operate the machine yourself. This latter fact is part of what tripped Buhrman up; a police officer saw her in such a store (I’m theorizing that it was a 7-Eleven; the opinion doesn’t say) almost falling asleep while trying to get that frozen cherry Coke Slurpee we all need from time to time. She also had some trouble keeping her balance while walking. A casual observer might well conclude that she had had one too many of, well, something.

The officer saw her head for her car. Now, none of us want someone like that behind a wheel, so the officer approached her and asked for her ID. She was pleasant enough, and opened her car door to get her license. When she did that, the officer saw several hand-rolled cigarettes. She also noticed a “faint odor” and observed that the cigarette paper was apparently an unusual color. At that point, the officer paces Buhrman under arrest; a search incident to arrest turned up drugs in the car.

This case turns on a motion to suppress, which Buhrman filed because she thought the arrest wasn’t supported by probable cause. As with all such analyses, the focus here is whether the facts observed by the officer would “warrant a person of reasonable caution to believe that an offense has been or is being committed.”

A bare majority of the court finds today that these facts would not lead to such a belief. The majority, authored by Justice Koontz, points to a 2005 case in which the court had held that just seeing hand-rolled cigarettes isn’t enough to establish probable cause, because people sometimes smoke tobacco that way, too. As for the other two tidbits, Justice Koontz points out that while there was testimony from the officer of a “faint odor,” the record never indicates what kind of odor it was; it could be sandalwood perfume, for all the record says about it. Most people (me included) who read through the factual recitation the first time will miss this detail, but the dissent does not refute it. As for the final observation, Justice Koontz asserts that no one ever testified about the meaning of a particular color of the cigarettes. In truth, I would be surprised if crooks use white paper for tobacco and blue for marijuana – even they’re not that stupid – so this potentially important bit of evidence goes unexplained.

Justice Lemons writes a dissent on behalf of Justices Kinser and Goodwyn. He notes that we’re talking about probable cause here; not proof of guilt beyond a reasonable doubt. There might be a reasonable doubt as to whether the cigarettes were legit or not, but as long as a trained police officer reasonably believes that they might well be contraband, then the officer is justified in investigating further.

The next case, McCain v. Commonwealth, also produces a 4-3 split, but some of the justices swap sides. McCain’s sin was in riding up to a house in a high-crime area (at which house an observing police officer had participated in a controlled drug buy some months earlier) in the wee hours of one morning in 2005. After a minute in the house, he returned to the car (passenger side), which then backed out illegally. The officer stopped the driver and eventually asked McCain to step outside. So far, so constitutional.

The officer then asked McCain if he could pat him down for weapons; McCain said no, as was his right. Well, we’re doing it anyway, retorted the officer, who frisked McCain. At one point, the officer asked McCain if he had any weapons. Yes, came the truthful reply, after which McCain was arrested. The search-incident produced cocaine.

McCain moved to suppress, but the trial court refused to do so. Today, the Supreme Court reverses that ruling and dismisses the indictments. The heart of today’s ruling is the analysis of the Terry stop (since McCain wasn’t the driver, he hadn’t committed any vehicular offense). The majority, this time written by Justice Goodwyn, observes that an officer needs a reasonable and individualized suspicion of a person before he can perform a pat-down search. Circumstances like presence in a high-crime area and the time of day may be relevant, but according to the Big Supremes in Washington, “they do not supply a particularized and objective basis for suspecting criminal activity on the part of the particular person stopped.” This officer had seen McCain participate in no suspicious activity; he simply came to a location where a crime had been committed months earlier.

Perhaps the most memorable line in the majority opinion is this one: “A person’s Fourth Amendment rights are not lessened simply because he or she happens to live or travel in a ‘high crime’ area.” That fact, more than anything else, undoubtedly led to this arrest, and today the court finds that that fact just isn’t enough.

But here again, a vigorous dissent thinks otherwise. Senior Justice Carrico, writing for Justices Koontz (yes, the author of the majority in Buhrman!) and Kinser, concludes that the totality of circumstances, which the officers are supposed to consider and the courts are supposed to respect, would lead a reasonable person to believe that criminal activity might be afoot and McCain might be armed and dangerous. Justice Carrico outlines the court’s duty to protect an officer’s safety, harkening back to Terry v. Ohio, and notes that frisks like this save lives of men and women in blue.

A third ruling is equally bad news for the prosecution; the court unanimously holds that the warrantless search of a home after an arrest that occurs outside is unreasonable in light of the Fourth Amendment. The case is Commonwealth v. Robertson.

In August 2005, Danville police responded to a domestic disturbance where a man and his girlfriend had been arguing. She got out of the house, but he stayed inside with a gun and held the police at bay. She reported hearing two gunshots before the police got there, but no shots were fired while the officers were on the scene. The girlfriend told police that the man, Robertson, was alone in the house.

At some point, Robertson sat on a windowsill “with his legs hanging out the window. This is not the ideal position for a guy who’s surrounded by the SWAT team. One such officer took careful aim while Robertson was distracted, and . . . the bro’ tased him. Stunned, Robertson fell into the flower bed, where police took him into custody and the incident ended peacefully.

In order to secure the scene, police broke down the front door and entered the house, where they found a shotgun. As with our previous cases in this section, this appeal turns on the ensuing motion to suppress. The trial court denied it, but the Court of Appeals, in a published opinion, reversed, holding that the police had no right under the Fourth Amendment to enter without a warrant or without consent (and no one had given consent).

Today, in a rare appeal by the Commonwealth, the Supreme Court affirms the Court of Appeals, and holds that neither of the two possible justifications for a warrantless entry exists here. There was no exigent circumstance, because the officers had heard from everyone they asked that there was no one left in the house after the arrest. That means no suspects would escape, and no evidence was going to get up and walk away. Nor was this a suitable situation for a “protective sweep,” designed to secure the officers’ safety, as no gunshots would come from within. Accordingly, the proper course for the officers to take would be to take Robertson into a cell and get a warrant to search the house. Since they didn’t do that, they can’t use the evidence they seized. And with no shotgun, it will no doubt be troublesome to prove the charge, which is possession of a firearm after a felony conviction.

The local prosecutors and the Attorney General aren’t the only ones reeling from today’s criminal cases – the Court of Appeals of Virginia is in the same boat today, as a result of two decisions consolidated under the case of Jay v. Commonwealth. This opinion contains what might be a moderate surprise in a sufficiency challenge, and what must be acknowledged as a major surprise on an appellate procedural issue. If you ever plan to handle an appeal again, read on; from a purely appellate procedure standpoint, this is the Decision of the Day.

The opinion arises from appeals filed by defendants named Jay and James for wholly unrelated crimes. The court reverses convictions in James’s case for attempted robbery and a related firearm charge, and the analysis of that ruling is intriguing. James arranged to sell half a pound of marijuana to a person who turned out to have, at least from James’s perspective, a most unfortunate occupation: Police officer. They agreed to meet alone at a parking lot at a Virginia Beach store to swap the drugs for $950 in cash. When they arrived separately, they parked a few parking spaces away from each other. What followed was a strange (but perfectly understandable) dance by which each beckoned the other to approach. The officer, playing her part perfectly, said she was nervous and didn’t want to get into James’s car, since the two didn’t know each other.

Eventually, the officer walked over to the passenger side of James’s car, opened the door just to roll down the window, and resumed her conversation, beseeching James to hurry up and make the exchange, so they could each leave quickly. James continued to ask her to get into his car. At that point, several hidden police officers descended on the scene and arrested James. When that happened, the police discovered a couple of interesting things in the car. Thing #1 was a handgun, which apparently fell from James’s waistband as he was arrested. But the magazine was empty, so no shots could be fired from it. Thing #2 called himself Mitchell; he was discovered in the back of James’s car, and professed that he was trying to sleep. Oh, and under Mitchell was Thing #3, the missing magazine from James’s gun. In case you’re waiting for Thing #4, a bag containing half a pound of marijuana, you’ll go home disappointed from this opinion; there were no drugs in the car.

So, have you figured out what the plan was? James decided to steal the money from the unfortunate purchaser by taking her money and then telling her to get lost. There was no drug sale because there were no drugs. The prosecutor did, however, go after James for attempted robbery (since, he figured, the plain intent was to get the money by intimidating the officer, either alone or in concert with a surprise pop-up arrival by Mitchell) and for use of a firearm in the commission of that crime. The trial court got him for that and the Court of Appeals agreed, refusing a writ. But today, the Supreme Court reverses, holding that the evidence of James’s intent was also consistent with merely obtaining the money by false pretenses – still a crime, but nowhere near as serious as robbery. The court agrees that the evidence was consistent with James’s intention to commit robbery, but there was no overt act in furtherance of that crime, so the conviction is reversed. And as the attempted robbery charge goes, so goes the weapon charge.

But what about all those things James did in preparation, you ask? You know; setting up the faux drug buy; going to the scene; even trying time and tie again to get James to get into his car? The problem with this is that robbery involves the use of force, threats or intimidation, and there was no overt act taken toward that end. As such, the evidence was perfectly consistent with a false pretenses claim, as was presented to the court very recently in Parker v. Commonwealth, 275 Va. 150 (2008). Since there is a plausible view of the evidence by which James would be innocent of attempted robbery (even though guilty of the false pretenses attempt), his conviction is reversed and the indictments dismissed.

Believe it or not, we haven’t even gotten to what I regard as the major news of these two cases. That part involves the Supreme Court’s disapproval of a long-standing interpretation by the Court of Appeals of Rule 5A:20 (e), which requires an appellant to include in his brief “the principles of law, the argument, and the authorities relating to each question presented.” The Court of Appeals has routinely interpreted this rule to require that the appellant must cite some caselaw or statute in the argument section of his brief; if he does not, the court regards that as a jurisdictional default, and the appeal is dismissed. Such a fate awaited both appellants in this opinion; even more recently, it has struck twice in the past three weeks in published CAV opinions (Rambo v.Commonwealth on April 1, and Virginia Tech v. Quesenberry just last week). In all of those cases, the appellant has recited what it regarded as black-letter law, without citing a particular case, and the Court of Appeals found that wanting.

While the Supreme Court doesn’t encourage rules violations, it does rule today that a violation of this rule isn’t jurisdictional, and it was wrong to dismiss the questions presented instead of considering them. It reasons that the arguments and authorities requirement is on the same level as the requirement to alphabetize the cases in the table of authorities, but no one would hold that an alphabetization error is a jurisdictional failing. The court thus remands to the Court of Appeals with a directive to consider the arguments thus raised.

I must admit, I had found the Court of Appeals’ interpretation of that rule to be very harsh, but I had never before questioned its correctness; I just figured (and taught in CLE programs) that you need to provide a citation for each significant argument you make, to avoid this procedural default. Interestingly, while this rule relates exclusively to practice in the CAV, today’s opinion clarifies that that court doesn’t even get the last say on its own rules; the Supreme Court decides today, in effect, that the Court of Appeals has been misinterpreting this rule. Of course, the Supreme Court is the body that promulgates those rules in the first place, so it would be correct to say that the CAV doesn’t have the first word, either. In any event the Supreme Court tacitly acknowledges in a footnote that it, too, has occasionally applied the same now-passé procedure, by dismissing certain petitions for appeal for failure to cite authority under the parallel provisions of Rule 5:17 (c)(4).

Two final points, including one very important distinction. First, both courts are still free to consider that an argument has been waived (instead of jurisdictionally defaulted) if there are no citations, so this might prove a temporary victory for Jay and James; the cases are remanded for the CAV to consider the arguments, not with a directive that the court accept them. Second, whether you cite caselaw and statutes or not, you still must include at least some identifiable argument in support of your assignments of error (in the Supreme Court) or questions presented (in the CAV). Just listing an issue in the front of the brief, and then hoping the court will find some merit in it, will surely be regarded as a waiver. One of the most famous instances of this was the extremely long brief of appellant filed on behalf of convicted sniper John Muhammad. His lawyers assigned 102 errors, but the Supreme Court declined to consider almost a quarter of those (as I recall), since the justices couldn’t pinpoint any specific argument in support of those. This procedural flaw remains in full force and lethal effect.

One of the Court of Appeals’ log-standing evidentiary presumptions dies a fitful death today in Young v. Commonwealth, involving a drug possession conviction. There’s no question that Young possessed the drugs; that wasn’t contested at trial. But it was knowing possession – that is, knowledge of the character of the drugs – that she contested at trial, in the Court of Appeals, and now in the Supreme Court.

The only two witnesses at trial were the arresting officer and the girlfriend of Young’s uncle. (We may reliably assume that the evidence also included a duly attested certificate of drug analysis.) The officer testified that he found certain unmarked prescription pills in a bottle in Young’s purse at a traffic stop. The bottle had a label identifying the prescription as OxyContin, under the patient name of Stephanie Woody. But the pills proved to be morphine and Trazodone, both controlled substances.

The uncle’s girlfriend was none other than the aforenamed Stephanie Woody, who duly produced the prescriptions for all three drugs (she suffers from chronic migraines, for which I profoundly sympathize). She explained that Young was driving the uncle’s car, in which Woody had inadvertently left the pill bottle. She also recounted a telephone call she had received from Young, telling her of the discovery of the bottle in the car. Woody thus theorized that Young had merely placed the bottle in her own purse in order to return the pills to their rightful (and lawful) owner.

The Court of Appeals affirmed Young’s conviction, citing its well-established doctrine that “possession of a controlled drug gives rise to an inference of the defendant’s knowledge of its character.” There was no question of possession, so the trier of fact was entitled to infer knowledge of the nature of the drugs.

In just over seven pages of double-spaced text, the Supreme Court wipes this inference off the books today. It reaffirms its prior holdings that mere possession is not sufficient to establish guilt, absent some evidence of knowledge by the defendant of the drugs’ character. “Countless scenarios can be envisioned in which controlled substances may be found in the possession of a person who is entirely unaware of their character,” writes Senior Justice Russell for a unanimous court. One such innocent hypothesis is exactly the situation presented by the uncontradicted evidence in this case.

This decision technically leaves open the question of whether, for example, a husband can go to the drug store, pick up a perfectly legitimate prescription for a controlled substance, and drive home in his car to take it to his ill wife or child. Does the husband thereby possess the drugs illegally, since (unlike Young) he knows exactly what’s in the bottle? (True confessions: I have done just this for my family on many occasions.) Theoretically yes, but to adopt the vernacular, Gimme a break; I cannot envision any trial court convicting the husband in such a scenario. Young’s situation is even stronger than that husband’s, so her conviction is reversed.

As noted above, one published order is also handed down in a criminal case, and even that one goes against the prosecution. In Snell v. Commonwealth, the court follows its still-warm precedent in Grandison v. Commonwealth, 274 Va. 316 (2007), where it held that a dollar bill that was manipulated into an apothecary fold did not give police probable cause to suspect that it was being used to carry drugs, expert police testimony to the contrary notwithstanding. That’s because a folded dollar bill has a perfectly legal purpose (it even says so, right on the front: “Legal tender for all debts, public and private”), so one cannot presume an illegal use if a legal one is plausible.

In Snell, essentially the same situation exists, although it’s unclear whether this was an apothecary fold or just a tightly-folded bill. A bare majority of the court finds Grandison to be on all fours, and vacates the conviction. But three justices dissent; they are the same three who dissented in Grandison. Justice Lemons, writing for Justices Kinser and Agee, argues that the majority incorrectly uses the standard for determining sufficiency of the evidence for a conviction, instead of the analytically more lenient standard of probable cause, to decide the case. He concludes with the terse statement, “Grandison was wrongly decided and so is this case.”

Derivative suits
Derivative suits, whether on behalf of shareholders (in the case of corporations) or partners (in the partnership context) are almost always highly fact-intensive, and Jennings v. Kay Jennings Family Ltd. Partnership is no exception. I have a cruel choice here; I can spend a great many electrons reciting all of the facts, and thereby give you the juicy details of a nasty family squabble; or else I can summarize the holding for you, safe in the knowledge that you’re just a mouse click away from reading the slip opinion. I am going to have mercy on you by taking the former approach – not because today’s opinion is poorly written (it isn’t), but because you will labor to keep all the facts and entities straight. Please accept the following as a short summary of the major rulings and lessons of the case, and if this piques your curiosity as to what’s going on at Peyton Place, click on the hyperlink above.

The major issue in the case is whether a plaintiff “fairly and adequately represent[ed] the interests of the other partners, his siblings, in bringing this suit. (The quoted language is from the statute that authorizes such suits.) Since this is a case of first impression, in both the corporate and partnership contexts, the court considers and then adopts an approach found in the caselaw of other states, and in federal cases.

There are at least ten factors that are relevant to determining whether the plaintiff is a suitable representative of the class; those factors are listed on pages 8-9 of the slip opinion, but the court cautions that they “are not exclusive and must be considered in the totality of the circumstances found in each case.”

The trial court applied three of the factors to determine that the plaintiff was not a suitable party to represent the interests of his siblings. That’s because his economic interests were, at least in part, antagonistic to those of the partnership; through another company he owned, he engaged in litigation (which ended up in arbitration) adverse to the partnership; and he received no support from his siblings.

Personally, if I’m in a partnership like this, then a brother like that is the last guy I want filing a derivative suit that’s ostensibly for my benefit. The Supreme Court saw it the same way, and affirmed the trial court’s dismissal of the suit for lack of standing. As noted above, this case will be useful in both corporate and partnership contexts, so if you handle that type of case, you should consult this opinion to ascertain that your plaintiff is a proper party to maintain the suit.

Public employees
If you’re a firefighter or law enforcement officer, or are a dependent of one, then Commonwealth v. Barker will matter to you, a great deal. It deals with the statutory presumption afforded such public employees by the Line of Duty Act. In the event of death of such an employee “while in the line of duty as the direct or proximate result of the performance of his duty,” his estate gets a cash award from the state treasury, “in gratitude for and in recognition of his sacrifice on behalf of the people of the Commonwealth.”

Terry Barker was a deputy sheriff in PittsylvaniaCounty when he died of a heart attack while driving his police car. Shortly before his fatal attack, he had been engaged in positioning a camera for surveillance work; the job entailed his jumping a ditch while carrying a 50 pound battery. After he completed that task, he drove away, when he was stricken. His widow filed a claim for the benefits (then $75,000, now up to $100,000), but the state Comptroller balked, setting off a detailed (but very interesting) chain of legal analysis, as follows:

The Comptroller argued that nothing in the medical evidence showed that the heart attack occurred “as the direct of proximate result of the performance of” the decedent’s duties.

The widow responded by noting that the Act incorporated the presumption in favor of public safety employees in the Workers’ Compensation Act (Code § 65.2-402). That provision states that where such an employee dies in the line of duty from certain diseases, including atherosclerotic heart disease, then the law presumes that the medical condition caused the death, unless the presumption is rebutted.

The Comptroller answered that by referring to the decedent’s pre-employment physical exam. The Workers’ Comp presumption applies only where that physical shows the employee to be “free of respiratory diseases, hypertension, cancer or heart disease” at the time they’re hired. And this employee’s pre-employment examination showed that he had hypertension, so the presumption doesn’t apply.

The widow had a riposte ready for this argument. She pointed out, quite plausibly, that a diagnosis of hypertension didn’t matter, because her late husband had died of the wholly separate cause of heart disease.

I’ll admit that the Comptroller’s response to this argument surprised me: “Tough. If you have any of the listed conditions, then you aren’t entitled to the presumptions for any of them.” I was surprised because these provisions are supposed to be in gratitude and recognition for one’s sacrifice to the public good. Nevertheless, that was the Comptroller’s position.

The Supreme Court takes a slightly different tack. It reasons that the Line of Duty Act uses different language from the Workers’ Comp Act, and requires proof that the death was “the direct or proximate result” of the employee’s performance of a duty. In that sense, the Workers’ Comp presumption doesn’t help; all that presumption does is prove that the decedent died from a given medical condition. Since the widow had no proof of causation, she can’t recover the $75,000.

But the news isn’t all bad for her; the court finds that she is entitled to a lesser award of $25,000. A separate subsection of the Line of Duty statute actually incorporates the lower standard found in the Workers’ Comp Act, and the court finds that the widow’s evidence is sufficient to meet this threshold. She accordingly gets the $25,000 benefit, plus continuing health insurance benefits.